21:5 The priests, sons of Levi, shall come forward; for YHWH your God has chosen them to minister to Him and to pronounce blessing in the name of YHWH, and every lawsuit and case of assault is subject to their ruling.

Elders’ Declaration – The elders then make a declaration to God over the body of the heifer:

21:6 Then all the elders of the town nearest to the corpse shall wash their hands over the heifer whose neck was broken in the wadi. 21:7 And they shall make this declaration: “Our hands did not shed this blood, nor did our eyes see it done.

Request for Atonement – After the elders declare that they are not responsible, they (or the priests, see appendix) ask God to absolve Israel from guilt:

21:9 Thus you will remove from your midst guilt for the blood of the innocent, for you will be doing what is right in the sight of YHWH.

Talmud: Freeing the Elders from Culpability

In many of the lists of חוקים—laws that, according to the rabbis,[2] have no readily understandable rationale—the eglah arufah appears.[3] Early rabbinic discussion of the eglah arufah focuses instead on the declaration that is specifically placed in the mouths of the elders: “Our hands did not shed this blood.” Sifrei (210) and the Mishnah (Sotah 9:6) both question this declaration:

וכי על דעתינו עלתה שזקני בית דין שופכי דמים הן

Could it have crossed our minds that the elders of the rabbinical court are murderers?

The Mishnah (in the reading found in the most reliable manuscripts[4]) explains that the elders are really saying,

שלא בא לידינו ופטרנוהו ולא ראינוהו והנחנוהו

It is not the case that he came to us and we dismissed him, or that we saw him and let him go.

The subject of בא, “he came” is unclear, and the Jerusalem Talmud (Sotah 9:6, 23d) offers two different possibilities:

A) Murderer – The explanation attributed to the rabbis of the Land of Israel (themselves), is that the elders’ declaration refers to the murderer. They are affirming that they, the elders, had never apprehended nor even seen the murderer and then subsequently released him or allowed him to escape:

It is not the case that he [the murderer] came to us and we dismissed him without execution, nor did we, acting irregularly in the judgment of his case, see him and let him go.

According to this understanding, the ceremony reminds the elders of their responsibility for pursuing justice. If they are lax in their attempt to apprehend and convict a murderer, it is as if they themselves spilled the blood of the victim.

B) Victim – The explanation attributed to the rabbis of Babylonia[5] is that the elders are saying that they were not guilty of having neglected the needs of the murder victim:

שלא בא לידינו ופטרנוהו בלא מזון ולא ראינוהו והנחנוהו בלא לויה

It is not the case that he [the murder victim] came to us and we let him go without food or that we saw him and let him go without accompaniment [as he left the city].”[6]

This understanding suggests that the ceremony reminds the elders and all Jews that they are responsible for the social welfare of the vulnerable. Whenever poverty causes a person’s death, the community bears some of the responsibility.

Poverty Made the Victim a Criminal: RashiRashi, in his commentary to the Talmud,[7] explains how the community’s failure to give food to a poor person could have been the root cause for his murder:

“Our hands did not shed…”: He was not killed on account of our malfeasance. [It was not the case that] we sent him off without food, such that he had to become a highwayman [in order to eat] and thus he was killed.

While Rashi’s explanation may not reflect the peshat understanding of the text, it demonstrates his desire to make this text relevant, since we all have opportunities to give charity to the needy or to refrain from doing so.

We Are All Responsible for Each Other In consonance with the rabbinic approach, Shadal (Samuel David Luzzatto, Italy; 1800-1865) suggests that one reason for this law is:

לחזק האמונה המפורסמת באומה שכל ישראל ערבים זה לזה . . .

It strengthens the belief in the Jewish nation that all Jews are responsible for each other . . .

What about the Ritual?

The Talmudic explanations focus on the elders’ confession, but do not relate to the elements of the ritual of the heifer. But what kind of ritual is eglah arufah and what does the killing of a heifer have to do with an unsolved murder? As noted above, the rabbis considered the ritual to be an inexplicable law (חוק). But this did not stop academic scholars and Jewish thinkers over the ages from attempting to find a rationale.

The Function of the RitualDavid P. Wright, professor of Bible at Brandeis University, lists various possible explanations. The killing of the heifer is either:

…a sacrifice, a symbolic or vicarious execution of the murderer, the representation of the penalty the elders will suffer if their confession of innocence is not true, the means of preventing the animal laden with guilt from returning to the community, or a reenactment of the murder which removes blood pollution from the inhabited to an uninhabited area.[8]

Rabbinic commentators from medieval through modern times also debated the meaning of the ceremony.

Maimonides and Bekhor Shor: Generating publicity

In his twelfth-century work, Guide for the Perplexed (3:40), Moses Maimonides offered an original interpretation of the ceremony (Friedlander trans.):

The beneficial character of the law concerning “the breaking of the neck of a heifer” (Deut. xii. 1-8) is evident. For it is the city that is nearest to the slain person that brings the heifer, and in most cases the murderer comes from that place… As a rule, the investigation, the procession of the elders, the measuring, and the taking of the heifer, make people talk about it, and by making the event public, the murderer may be found out, and he who knows of him, or has heard of him, or has discovered him by any due, will now name the person that is the murderer, and as soon as a man, or even a woman or handmaid, rises up and names a certain person as having committed the murder, the heifer is not killed.…

When the murderer is discovered, the benefit of the law is apparent. If the court of justice cannot sentence him to death, the king may find him guilty, who has the power to sentence to death on circumstantial evidence; and if the king does not put him to death, the avenger of blood may scheme and plan his death, and at last kill him.

Force is added to the law by the rule that the place in which the neck of the heifer is broken should never be cultivated or sown. The owner of the land will therefore use all means in his power to search and to find the murderer, in order that the heifer not be killed and his land not be made useless to him.[9]

According to Maimonides, this very strange and very public ceremony is simply meant to attract attention, in the hopes of building awareness and catching the killer.[10] A similar explanation to that of Maimonides’ is found in the Torah commentary of Rabbi Joseph Bekhor Shor (Deut 21:8), a contemporary of Maimonides who lived in France:[11]

God commanded that all this be done so that the murder victim “has a voice.” Noise is made through the measuring of the cities [to find out which one is closest], and the arrival of the rabbinic court there, and the heifer which is killed and buried. All these are unusual [and attract attention].

If someone had gone on a journey and did not return, and no one knows his fate, his household and his relatives might come because of the publicity and they can see if they recognize the person who died. Thus his wife will not be an agunah [but will be allowed to remarry]. . . .

As a result of their belief that the land would be cursed because of [unavenged] spilled blood, it was necessary to take steps to avert the possibility that they would be tempted to kill an innocent person who was suspected of the murder even without clear evidence and certain testimony. . . . In the current case, where the murder victim was found, [they might have mistakenly thought] that the entire people would be punished if their efforts did not turn up the murderer.

Shadal is concerned with combating vigilantism. Out of fear of the consequences the Israelites could suffer from God for having allowed innocent blood to be spilled on their land, they might try to “identify the culprit” even without solid evidence.

Thus, the ceremony’s goal is to stop people from feeling that, in order to keep the land from being polluted[13] following an unsolved murder, they have to find and punish the murderer even without solid evidence. The ceremony averts vigilantism by providing a method of removing bloodguilt from the land when punishing the offender is not an option. Thus Shadal totally rejects the claim of Maimonides that the ceremony’s benefit is that it may lead to the execution of a murderer despite the lack of incontrovertible evidence.

Ramban: It’s a Sacrifice

Ramban (Moses ben Nahman, 1194-1270) suggests that the eglah arufah is really a sacrifice, just not a standard one.

ולפי דעתי יש בו טעם כענין הקרבנות הנעשים בחוץ שעיר המשתלח ופרה אדומה

In my opinion, its explanation is like that of [other] sacrifices that are offered outside [of the Temple]: the goat that is released (Lev 16) and the red heifer (Num 19).

Ramban, who is deeply immersed in the world of Jewish mysticism, has little use for any of the rational explanations of the eglah arufah. He prefers to understand the eglah arufah the way many understand the goat that is released to Azazel on Yom Kippur and the red heifer, namely as a very unusual sacrifice that is meant to accomplish a specific (kabbalistic) purpose. In his Torah commentary on those other two mitzvot, he offers kabbalistic explanations that involve placating or overcoming the forces of evil in the world.[14] It is likely that he has a kabbalistic explanation for this ritual as well, though in this case he does not include it.

Ironically, Ramban ends up at a place not so far from some modern scholars who note that the ceremony appears to be a sacrifice as it centers on the killing of an animal and it effects atonement or absolution. Yet other modern critical commentators conclude that the ceremony could not be a sacrifice:[15] It does not take place at a holy site; no altar is involved; the animal is not slaughtered in the standard manner of sacrifices;[16] the animal’s blood is not mentioned and nothing is done with it; no one eats any of the meat of the animal; and the flesh is not burned—crucial elements of sacrifice in Torah law.

Milgrom’s Hypothesis

This survey of the multiple explanations for the ritual suggests that its reason is unclear. Jacob Milgrom suggests that the reason for this ambiguity is that Deuteronomy is repurposing, and adding an ethical dimension to, an ancient pre-Israelite ritual that it inherited:

The key to this rite is its underlying postulate that the blood of the innocent . . . pollutes the earth on which it is shed (Num. 35:33). The earth, having received the blood involuntarily, withholds its strength (Gen. 4:11–12), bringing drought and famine upon its inhabitants (II Sam. 21:1, LXX; cf. also II Sam. 1:21; Ezek. 22:24). This belief is not peculiar to Israel, but is part of its heritage from the cultures along the Mediterranean littoral…. The ʿeglah ʿarufah is the cultic prophylactic to avert this contingency. Its purpose is to transfer the land polluted by the corpse to an uncultivated plot, removed from the settled area… According to this interpretation the Torah has incorporated an ancient rite.

…At the same time, it should not be overlooked how an act of pure sympathetic magic was transformed by the Torah to conform to its basic spiritual and ethical outlook. First, the ritual was placed in the hands of the priests, those “chosen by the Lord to serve Him” (21:5), and removed from the authority of the lay-elders, who might be addicted to its pagan origins. Then, the declaration was given an appendix (21:8–9), whereby the automatic, magical expiation presumed by the ritual was abolished, and the expiation and, indeed, all forgiveness of sin attributed solely to the Lord.[17]

Milgrom thus hypothesizes an unattested pre-Israelite ceremony that removed the sin magically. Deuteronomy, he suggests, included the ritual in its laws, but added the declaration of the elders underlining the responsibility they have for the people under their care, added the priests who represent proper worship of God, and made the expiation come from God as opposed to automatically from the ritual itself.

The Ceremony Abolished, But the Idea Lives on

According to the Mishna (Sotah 9:9), the eglah arufah ceremony was abolished in the first century CE (perhaps before and perhaps after the destruction of the Temple). The official reason given in the Mishnah is that there were too many murderers in the land.[18] That same Mishnah says that the ceremony of the sotah, the suspected adulteress (Num 5:11-31), was similarly abolished then as there was too much adultery in the land.[19] In a sense, the Mishnah concluded that these ceremonies served no real function in the world of rabbinic Judaism.

Nevertheless, the idea behind the ceremony still lives on in Jewish thinking. After the massacre in the Sabra and Shatilla refugee camps in Lebanon in 1982, perpetrated by Christian Phalangist troops who were allies of the Israel Defense Forces, the Israeli government set up the Kahan Commission of Inquiry. The report concluded that while Israel did not bear direct blame for the massacre, under the principle of the eglah arufah, they shared in the responsibility.[20] And in a wide range of social issues—from problems of traffic accidents[21] to children alienated from their communities to overdosing on drugs,[22] to the need for improved emergency services[23]—Jewish groups continue today to cite the eglah arufah as a message to us that we are all responsible for each other.

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AppendixThe Role of the Priests

In this law a role is played by “the priests, sons of Levi,” an unusual phrase in Deuteronomy.[24] In verses 1-4, the authorities are not priests, but זקניך ושוטריך—your elders and magistrates. Only in verse 5 do the priests “come forward.” But the heifer had been killed already in verse 4, before the priests came forward,[25] and immediately after that, in verse 5, the elders are again conducting the ceremony, not the priests. The speaker in verses 7-8 (“Our hands did not shed this blood…etc.”) could possibly be the priests,[26] although most likely it is the elders.[27] So what, then do the priests do?

A creative suggestion dating back to the Mishnah is that in verse 7, the elders say “Our hands did not shed this blood, nor did our eyes see it done.” Then, in verse 8, the priests answer: “Absolve, O YHWH, Your people Israel whom You redeemed, and do not let guilt for the blood of the innocent remain among Your people Israel.”[28] Although there is no indication at the beginning of verse 8 that the speaker has changed, the notion that כפרה—atonement or absolution—is granted or proclaimed by the priests seems logical, and may provide a justification for the priests’ presence. [29]

___________________

Rabbi Dr. Marty Lockshin is University Professor Emeritus at York University and recently made aliyah. Marty’s primary area of scholarly expertise and writing is the history of Jewish biblical interpretation, particularly the interplay between tradition and innovation. Most of his research has been centered on those medieval biblical commentators who valued tradition intellectually, who lived traditional lives and who still innovated unabashedly in their understanding of the Bible. The largest part of his scholarship has been about Samuel ben Meir (12th century Northern France), a traditionalist Bible commentator with an uncanny knack for offering new understandings of biblical texts—his conclusions are often strikingly similar to the “discoveries” of biblical critics seven or eight hundred years later. Professor Lockshin received rabbinical ordination while he studied in Yeshivat Mercaz Harav Kook in Israel.

08/21/2017

[1] According to the Mishnah (Sotah 9:1) this responsibility would fall on the Great Sanhedrin in Jerusalem.

[2] In biblical Hebrew the word חוק does not mean a law that lacks a readily understandable reason. But in rabbinic literature that usage of the word is standard.

[3] While not in the list of חוקים in our printed text of b. Yoma 67b, some manuscripts of that Talmudic page do list the eglah arufah. It does appear in the list of חוקים in Tanhuma, Mishpatim 7, and in Maimonides’ list of חוקים in MT, Meilah 8:8. Jeffret Tigay, The JPS Torah Commentary: Deuteronomy (Philadelphia: JPS, 1996), p. 475, suggests this as a possibility as well, “It is not clear that Deuteronomy attributes any meaning at all to the elements preceding the final prayer.”

[4] See, for example, the Kaufmann manuscript of the Mishnah and Mishnah Codex Parma (De Rossi 138). We can see from Rashi’s Talmud commentary that this reading, without the words בלא מזונות, was the Mishnah text that he had before him, as he writes: לא בא לידינו ופטרנוהו – בגמ’ מפרש בלא מזונות (commentary to b. Sotah 45b).

[5] See b. Sotah 38b, and see also Rashi’s commentary to Deut 21:7

[6] In many printed versions of the Mishnah, this explanation, i.e. the additional four words (בלא מזון . . . בלא לויה) became part of the Mishnah text. The best manuscripts and the discussion in the Talmud prove that these words are not part of the original Mishnah text.

[7] Commentary to b. Sotah 45b.

[8] D. P. Wright, “Deuteronomy 21:1-9 as a Rite of Elimination,” CBQ 49 (1987): 387-403, cited by Tigay, p. 473. After dismissing “sacrifice” as a possibility, Tigay (p. 475) notes that the rest of the theories “amount to saying that the heifer represents either the murderer, the elders, or the victim.”

[9] Ramban notes that, following Maimonides’ explanation, this is counter-productive.

But [if the purpose were to generate publicity,] it would make sense to perform the ceremony on some good arable land so that more people would know that it happened. For if you do it at a nahal eitan [“which is not tilled or sown”] no one would know why the area was not being cultivated.

Performing the ceremony on hard uncultivated land actually hinders publicity. Ramban does not understand נחל איתן as meaning an “everflowing wadi” (NJPS), but as land that either was not considered arable in the past, or will not be cultivated in the future. See the commentaries of Rashi and Ramban to vs. 4.

[10] Shadal (Deut 21:1) specifically denies that this could be the reason:

מצות עגלה ערופה איננה למען יתגלה הרוצח (כדעת הרמב”ם מורה ח”ג פרק מ’)

The purpose of the eglah arufah ceremony is not in order to find the murderer (as Maimonides claimed in Guide 3:40). . . .

For a different reason, Ramban also rejects Maimonides’ explanation on principle:

והנה לפי הטעם הזה יש בתחבולה הזו תועלת אבל המעשה איננו נרצה בעצמו

According to this [i.e. Maimonides’] explanation, this ruse has a purpose but the actions have no intrinsic value.

Ramban is bothered by the fact that Maimonides’ explanation makes the details of the law meaningless. Anything, in theory, that creates publicity would serve the same purpose.

[11] We do not know the precise dates of Bekhor Shor’s life but he flourished in the second half of the twelfth century, just like Maimonides. One of them may have learned this explanation from the other —that the purpose of the ceremony is to do something strange that attracts attention. Or perhaps they arrived at this conclusion independently. See the discussion in my article, “Was Joseph Bekhor Shor a Peshat Exegete?” (Hebrew), Iggud 1 (2008), 161-172.

[12] Bekhor Shor adds another reflection about the ceremony, again not commenting on the details, but just on the fact that an unusual ceremony is taking place:

וגם נראה דבר גדול וקפידה גדולה שהקב”ה מטריח על נפש אחת.

We can see [from this ceremony] how serious this matter is and how much God cares that He made us go to so much trouble for the loss of one life.

[13] Many biblical passages suggest that sin pollutes the land. See e.g. Lev 18:25, Num 35:34, Jer 2:7, and Ezek 36:18. These passages generally see bloodshed or sexual misbehavior as the cause of the pollution.

[14] See particularly Ramban’s comment on Leviticus 16 where he says of these mitzvot: “ והנה הענין מבואר . . . ברמזי התורה למבין סודם, ולא אוכל לפרש—these mitzvot are clear for someone who understands the secrets [of kabbalah]. I cannot explain further.” In the continuation of that comment he attacks those who rely on the teachings of היווני—the Greek [philosopher], meaning Maimonides (and others?) who relied on the teachings of Aristotle.

[16] The verb ע-ר-פ which is used here for putting the heifer to death is used in the Bible only about the killing of animals that cannot be offered as a sacrifice. See e.g. Exod 13:13 (about an ass) and Is 66:3 (about a dog).

[25] See Tigay, p. 475: “It is noteworthy that the priests step forward only after the heifer is slaughtered. This may be Deuteronomy’s way of depriving the slaughter of the sanctity that their participation would lend to it.”

[26] So Rashbam and Nahmanides.

[27] So for example Hazzequni: אזקנים קאי דסליק מיניה—i.e. the speaker must be the elders, for they were last group mentioned.

[28] This explanation is found in m. Sotah 9:6 and is adopted by Rashi in his commentary to this verse. It also found in Onkelos, who adds two words to his translation of the beginning of verse 8: כהניא יאמרון כפר לעמך. Rashi explains (in his commentary to b. Sotah 46a): כדכתיב לעיל ונגשו הכהנים בני לוי ולא פירש על מה הם נגשים—since it says above that the priests “come forward” but it does not explain what role they perform [we need to explain that role].

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